Quoting Google v. Oracle is really grasping at straws in my opinion. The SCOTUS opinion in Google v. Oracle was actually quite insightful and clear in that the need for the "line-for-line" copying of just the API declarations was the bare minimum needed for interoperability in the world of software.
None of those concerns exist in this case of Warhol copying a photo of Prince. There may certainly be other reasonable reasons for or against Warhol's use of the photo on fair use grounds, but the Google v. Oracle case is not one of them.
Since the ruling actually mentions Warhol using commercial advertisements in his artwork I'm somewhat convinced by their argument.
From the ruling:
In answering this question, we have used the word
“transformative” to describe a copying use that adds something new and important. Campbell, 510 U. S., at 579. An
Cite as: 593 U. S. ____ (2021) 25
Opinion of the Court
“‘artistic painting’” might, for example, fall within the
scope of fair use even though it precisely replicates a copyrighted “‘advertising logo to make a comment about consumerism.’”
IANAL but isn't there a massive difference between an artist making a comment on a totally unrelated field (art world commenting on the business world), and copying a product to use for the same purpose (i.e. a business copying another business's API).
Yes, one of the fair use factors is whether the infringing use is a market substitute. No one is buying a Warhol painting of Campbell soup instead of real Campbell soup.
"the need for the "line-for-line" copying of just the API declarations was the bare minimum needed for interoperability in the world of software."
I would argue that the use of the Goldsmith art to create the silk screens was needed for the "interoperability" of the statement warhol was trying to make.
The fact that it IS specific, recognizable art is what makes the actual mental connection, a sort of "API of the psyche", if you will, and hopefully conveys the desired information to the endpoint, or viewer.
What is the "interface" of an image and what is the "implementation"? In the Oracle case, the terms were clear. The interface is the set of rules that bind the implementation and its consumers. In the case of an image, this is inapplicable. One could try to determine the size of the image, its colors, and other physical parameters. But in the end, I fail to develop a useful abstraction that could serve as "interface". So, no, the case cannot be used as an argument, IMO.
Maybe music is a better analogy. If a band does a cover of a song, they may hold copyright to the recording (implementation) but not the composition (specification).
Why isn't it allowed to say that images of Prince were part of the environment, and the Warhol work simply documents or depicts that which was in the environment for all to see and which all experienced? It is both documentary and impression.
To me, (in a fantasy, perhaps incompletely considered "sane" world) once you broadcast or publicize something, you really waive all right to continue controlling it. If you want it for yourself, then keep it to yourself. But if you voluntarily allow it to be broadcast on TV or radio, or published in books or magazines, then you chose to make it a part of everyone's environment, and at that point it's THEIR environment, which in a sane world, they are free to at least observe and discuss. And recording and re-transmitting, even without transformation would just be forms of observation and discussion.
If the original photographer didn't want their photograph disseminated, they were free to not publish it or sell it to someone who they knew would publish it. They could have kept it locked in a safe in their own house and for their own enjoyment, and no one else would ever see it, remember it, or depict their impression of that memory to others.
Tell me Warhol's work is not impressionism.
I also wonder what the photographer paid to Prince for the use of his likeness... Or maybe the real theft victim and moral owner of this intellectual property is the designer of the camera or the film or firmware? After all, the operator may have pressed a button, but the engineers did far more work and the image was actually literally created by the camera.
This is a nice sort of post capital star trek thought, but the current reality is that this environment of yours us a mixed commercial, community and personal space. While you'd have to be fairly thick to not consider warhol's work fair use, there are an endless amount of creative and technical pursuits that without protection would leave the creators destitute. Just take one look at open source - an outright ocean of creative technical work used commercially and personally, and the avergae funding there is not just zero, but negative by way of dev time and material goods required to produce it. And that's probably the worlds most conscious space in terms of free use and shared contributions and so on.
Declaring all sharing discussion just doesn't cut it.
I would _like_ if we were in a place we could have this environment/discussion idea, but we're not even close.
Would it make sense to have multiple entities being able to have copyright on a single piece of work? In the Warhol case, maybe x% of the copyright to Warhol and y% to Prince?
It would make the legal aspect of profiting off such works 10x more complicated. And determining the appropriate percentages for each "contributor" would be a nightmare, if not impossible. But would it be more fair in the end?
No because then anybody could siphon ownership of a work away from its owner just by copying it without permission and with these kinds of modifications. Do many different versions and gain many portions of ownership.
I did mistakenly state Prince instead of Goldsmith. But silly enough that sort of plays into my hypothetical. Prince would own his likeness, which he would use to claim partial ownership of Goldsmith's photo. And Goldsmith and Prince would have a claim on Warhol's usage of the photo/likeness.
I don't think the situation you describe applies however. Someone wouldn't be able to siphon away ownership by using someone else's work. The person whose work is being used in the new work would be able to gain partial ownership of the new work. The author of the new work would only have ownership of their unique contributions, not ownership of the original work's contributions.
Prince's twin brother or someone who looks like prince either naturally or through surgery could make a likeness claim. There might be a few holes in this plan.
Sure, it's not perfect, I'm just going through a thought exercise to try and reason if the hypothetical I'm suggesting might be more fair than the current system. A lot of people say there are holes/deficiencies in the current copyright system. And a "perfect" system that everyone would be happy with is likely impossible.
Isn't that kind of how it already works? A software vendor licenses libraries bundled with their software and different people end up owning different parts of the final product?
In that case it's pretty clear who owns what due to the licensing involved.
I was more thinking of situations where a person, say, photographs a building they don't own or didn't design. They couldn't have taken that photo if no one built the building. But they alone own the copyright to the photo. Technically anyone who helped construct the building contributed to the creation of the photo, but have no right to prevent the photo from being circulated, sold, etc..
Let me be clear on saying that that's how I think it should be. I don't think we should stymie productivity for creating art/music, even when you are using other's creations as pieces of your own creation. But it gets murky like the case described in the article where Warhol created his own work depicting Goldsmith's work, and the courts ruled it wasn't a fair use.
It's probably possible in most jurisdictions to implement voluntarily by holding the copyright with an incorporated cooperative or partnership, of which the original authors are the owners. Corporate bylaws would determine licensing, allocation of the revenue, transfer and other such questions. Some jurisdictions do not allow either waivable or transferable moral rights, which could make this either complicated or infeasible.
In some jurisdictions, the copyright law has a mechanism for professional associations to be responsible for collecting the copyright within a certain area. Now that I think about it, the model seems like it might be adaptable to software.
It is known as a "derived work", not a split copyright.
The copyright owner of the original owns that copyright, including of the elements incorporated into the derived work. The copyright to the creative elements of the derived work are controlled by the copyright holder of the derived work, which may have a longer period of validity than the original work copyright.
To distribute the derived work while the original copyright is in force requires permission (license) of the original copyright holder, or a determination that the derivation is a fair use, which the Warhol Foundation is seeking.
I don't think the Google case is relevant here, but I definitely think how modern copyright works is really problematic for transformative works like this, fanfiction, (elaborate) reaction videos, etc. Reusing and rehashing creative works is nothing new, but the modern legal customs around copyright really hinders this kind of progress in the arts.
The fundamental problem is likely because of issues with the arts under capitalism. Because authors need people to purchase their particular works to make money, royalties by necessity need to be paid and lines need to be drawn over what is "original" or not. This is not the only system that can fund the arts; there is state funding, patron style funding, etc. where authors are not paid on the basis of each individual work, but the collective impact of their works.
I don't think it's really "stupid clickbait". The entire reason the Warhol Foundation went back to the appellate court was so they could cite Google v. Oracle as a new decision thus requiring review.
I understand that the WF is incorrectly using the Java API decision (and tying it to media's favorite punching bag by citing google) but the Hollywood Reporter didn't have to go along -- they wrote a perfectly good article that didn't need that title.
From the recent supreme court decision on oracle/google:
> "those 11,500 lines, however, are only 0.4 percent of the entire API at issue, which consists of 2.85 million total lines. In considering "the amount and substantiality of the portion used" in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole...
Andy Warhol museum's lawyers are making a PR play maybe. I don't think they're going to get very far in court with it, I don't see much similarity, just starting there.
[Also, yes, let's talk about the fact that the Supreme Court is still confused about what "API" means, calling the entire Java codebase "the API". That whole case was a mess of mistaken conceptual understanding of what software and APIs are and how they work. But anyway.]
Stupid hypothetical: If I created and distributed a 15 hour long song, in which I included a 3.6 minute (corresponding to 0.04% of the whole track) long song by The Beatles, would I be acting illegally? Is my case helped if the Beatles song fits in very well with the rest of the piece such that my work has more artistic value, to the point where no reasonable person would say it's intended as infringement?
> 15 hour long song, in which I included a 3.6 minute (corresponding to 0.04% of the whole track) long song by The Beatles
This is posing it the wrong way around. The API is still a tiny subset of Java itself.
If that 3.6 minutes is composed of any substantiate part of the Beatles' song, then you'll clearly have a problem.
However, we actually do have case law in this particular case that we can refer to, specifically, around sampling. In which case, we have several instances where samples less than 3 seconds can be considered substantive, as they may reflect the tone and rhythms unique to the original artist.
The API is just a tiny amount of code, but it is an extremely valuable and difficult to create portion of the code base. A good implementation is important, but a good implementation can't make up for a bad API.
The Supreme Court too was confused on this, calling the entire code base "the API" in it's decision.
The [actual] API is 'the most valuable' part of the code, true, but it's also the part least protected by copyright. "Factual" descriptions/specifications are not in fact copyrighted, and the right to make a reverse-engineered clone of something was already established under US copyright. If you want to for instance make a specification and say that nobody can implement it without your permission -- you can't actually do that under copyright law (you might be able to under patent law, in some cases).
If I were the judge, I would have decided the case based on that -- in favor of Google. That it's "fair use" to copy the API in fact regardless of what % of the work it was, precisely because cloning a specification is fair use, copyright is meant to protect a specific fixed expression (in the case of software that means the implementation) it's not supposed to prevent you from creating a compatible clone in the first place, and never has been interpreted that way before this case, it was a mistake, and you don't even need to decide what % of the code "the API" (the headers/method signatures) are to get there.
But that's not actually what happened in the US courts, the judges involved seemed (to my reading) to be very confused about these things, and not to really understand what an "API" (as specification) was, or it's role in software. They decided on different grounds. To me making the law pretty incoherent and unclear at this point. So it goes.
Also, "how difficult to create" something is has very little to do with it's protection under copyright in US law, generally, whether you think it should or not, not how the law works.
You have the numbers reversed -- it's not that the Beatles is only 0.04% of your piece, the analogy is if you only copied 0.04% of the Beatles piece. Google only copied 0.04% of Oracle's source code.
The test for "fair use" is not only based on portion of original used. It is a four part test, where the weighting of the four parts is not specified, it's subjective (as are some of the parts).
1. Purpose and character of the copy (which mainly ends up meaning commercial vs non-commercial)
2. nature of the copyrighted work (which often ends up being about how "original" it was)
3. amount copied
4. effect on the market
The idea that someone who's been dead for thirty-four years and whose closest living relative is a grand-niece should have any legal standing in any regard is astoundingly perverse.
It's perverse that property ownership changes hands when owners die? What you you propose instead? Allow nieces but not grand-nieces to own inherited copyrights? Copyright expires 33 years after death?
25 years seems a reasonable length of time for your dependents to grow up. Copyright is not property. Copyright is the government agreeing to arrest people for saying and doing the same things you said and did.
After reading up a little on this, it seems to me to be one of those cases where every judge and every internet commenter will have their own opinion. Any attempt at an objective ruling is impossible.
I will say though that the comparisons with Google vs Oracle are meaningless. It is clear that the Warhol Estate's legal team doesn't understand the underlying concepts and/or are trying a very creative interpretation of the ruling to suit their needs.
Interesting take from the Andy Warhol Foundation. Warhol could have drawn that from memory. He used an impression he had of existing source material (the photo) and changed it. He didn't copy it and then add on to it. It's an original work of art that didn't exist before.
Copying code. That's seems more duplication for strictly the original intended purpose.
How I see it: Copying an API is copying technical aspects for interoperability reasons. Copyright covers creative aspects, not technical aspects. If the API is covered by patents then the reproduction of technical aspects will be tortuous.
The important thing with copyright is whether you copied, not how you copied. So copying a work by looking at it and then duplicating it is still creating a derivative -- or could be of you reproduce a substantial part of the creative work.
Now, AWF's position seems tenable to me as there are apects of the photo that are not the _creative_ input of the photographer; namely the likeness of the subject. Duplication of those aspects is akin to duplication of the API: is duplication of apects that are not the creative work of the creator of the first work (in one case because those aspects are technical, in the other case because those aspects are just the features of a person's face [the photographer didn't creatively produce those features, unless they're a plastic surgeon!]).
Now, Warhol did copy. Unlike Google he didn't need to copy that particular work for interoperability reasons. To me the fact that any photo would have embodied the subject's features equally well means Warhol had no need to copy this one. That makes AWF's case distinct from Google v.
Warhol didn't even physically do the screen printing himself. He had assistants do it. The screen prints are made directly from the photo. It's a special type of photo sensitive paper. You do it in the darkroom.
It doesn't? Maybe the API of a photograph or other piece of work is how you perceive or appreciate it... the aesthetic of it. In this sense what Warhol has done is transformative.
> In this sense what Warhol has done is transformative.
Where is the line between blatant copying and transformation? If I take some photograph and just change colors can I claim I changed the photo's perception and thus sent a unique message? Maybe, but it's all about ideas in my head, not the changed photo itself. Same goes about many Warhol's works. They are just slightly changed copies of someone else copyrighted works and must be accompanied by art critiques explanations to be appreciated in full.
I don't think it's that clear. The interface of a library is still part of the library, albeit a very small one (smallest possible to enable interoperability). So, the SCOTUS accepts that re-using part of a creation can be fair-use.
I can't see how using photos as a basis for artwork is fair use. If that were the case, advertising agencies wouldn't have to pay photographers or other asset creators, they could claim fair use for transforming those photos and assets into an advert which is a new piece of art.
None of those concerns exist in this case of Warhol copying a photo of Prince. There may certainly be other reasonable reasons for or against Warhol's use of the photo on fair use grounds, but the Google v. Oracle case is not one of them.